Linda G. Burwell, BridgeTower Media Newswires
Three cases reported in recent months highlight the need for employers to make sure they conduct prompt, effective and impartial investigations of harassment claims.
Vasquez v. Empress Ambulance Service Inc.
In Vasquez v. Empress Ambulance Service Inc. (2nd U.S. Circuit Court of Appeals), the plaintiff, an emergency medical technician, received unsolicited sexual photos from a co-worker. She immediately complained to her supervisor and filed a written complaint of sexual harassment. Her employer promised to investigate.
When the plaintiff’s co-worker, the alleged harasser, found out she had complained, he manipulated a text message conversation on his phone to make it appear as though a person with whom he had legitimately been engaging in consensually sexted text messages was the plaintiff.
When the plaintiff met with her union representative, the owner and the human resources representative, they told her that the company “knew the truth.” The plaintiff adamantly denied the allegations and offered to show them her own phone. The company refused to consider her evidence and terminated her for engaging in sexual harassment.
When the plaintiff sued the company for terminating her in retaliation for complaining conduct, the court held the company could be liable for her co-worker’s retaliatory conduct because it allowed itself to be manipulated by him.
Gyulakian v. Lexus of Watertown, Inc.
In Gyulakian v. Lexus of Watertown, Inc. (Supreme Judicial Court), the plaintiff, a finance manager, when told she was being terminated, reported to the general manager, human resources manager and general sales manager that her boss, the finance director, had been sexually harassing her and creating a hostile environment for 18 months. Despite her allegations, the company moved forward with her termination.
After her termination, the company purported to investigate her allegations, found no corroboration, and did not discipline her director.
The plaintiff sued the company for sexual harassment, wrongful termination and retaliation. The jury found against her on the retaliation and wrongful termination counts, but rendered a verdict in her favor on the hostile environment count, awarding her $40,000 on the harassment claim and $500,000 in punitive damages.
On appeal, the company argued it couldn’t be liable for the hostile environment because it wasn’t on notice of the harassment, it had a policy for reporting such conduct, and, after the plaintiff complained, the company conducted an investigation that uncovered no corroboration.
The court agreed with the punitive damages award, holding that the company failed to take adequate remedial measures after being put on notice of the harassment and that failure was “outrageous and egregious.”
Shoan v. Attorney General of Canada
The third case, Shoan v. Attorney General of Canada, although a Canadian suit, is instructive because it shows how an investigator who fails to stay neutral throughout an investigation can taint the entire investigatory process.
In Shoan, the executive director of the Canadian Radio-Television and Telecommunication Commission filed a harassment complaint against an appointed CRTC commissioner. Her complaint was based on a series of seven emails between the two.
Under the CRTC’s policy, the secretary general is charged with administering the investigation process and reporting the recommendations to the CRTC chairman. The secretary general hired an outside investigator, who concluded that the plaintiff’s behavior was inappropriate and constituted harassment.
Based on the investigative report, the secretary general recommended interim measures, which were accepted by the chairman and the plaintiff’s appointment was ultimately terminated.
The plaintiff filed for review in federal court. The judge reviewed the investigation and ruled that the investigator and her team failed to keep an open mind such that the question of whether the plaintiff had harassed the executive director had been pre-determined.
The judge based his decision on cumulative aspects of the investigation process, including affidavits by witnesses who reported the investigators were argumentative, had already made up their mind, and were “unbelievably biased.”
The investigator failed to critically analyze the emails at hand and speculated on others. She changed some of the wording of the emails in her report and destroyed her notes prior to the appeal period. It appeared that the investigation turned into a “witch hunt” against the plaintiff, fabricating a case for harassment.
The court found that the actions showed that even if the investigator started out as unbiased, she and her team became biased and failed to keep an open mind. Thus, he ruled that the report be set aside.
These three recent cases evidence a growing recognition of the critical importance of prompt, thorough, unbiased and clear-eyed investigations to an employer’s ability to successfully defend against harassment claims and maintain a compliant workplace.
Some important takeaways from the cases include:
• Investigate every allegation regardless of when it is made;
• Don’t make a determination until all the facts are gathered;
• Gather all the information from all witnesses and make an effort to find sources of relevant facts;
• Keep an open mind throughout the process;
• Even if you are advised that an investigation was conducted, review that investigation to make sure it was done properly by objective, non-biased individuals;
• Satisfy yourself that the investigation met these qualitative standards before you take any action.
As the courts are turning an ever more discerning eye on the investigation process, you can help your clients get out ahead of that curve.
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Linda G. Burwell is an investigation counsel and president at National Employment Counsel, a niche firm serving law firms, in-house counsel and insurers, specializing primarily in workplace investigations.
